What Chinese Companies and Their Employees Should Know About Searches and Seizures of Electronic Devices at U.S. Borders

Summary

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• The frequency of U.S. border inspections is raising privacy concerns
• Border officials have broad and intrusive powers and non-compliance can have serious implications, including potential criminal sanctions
• Officers and employees of Chinese companies should be properly briefed and take appropriate precautions before traveling

U.S. Customs & Border Protection (CBP) has authority to search any electronic device, without a warrant, probable cause, or even reasonable suspicion, as you cross into the United States at any land border, international airport, or seaport. The U.S. Supreme Court has recognized a border search exemption from the Fourth Amendment's warrant requirement, enabling warrantless and in some cases suspicionless inspections of luggage and electronic devices at these locations (see United States v. Flores-Montano, 541 U.S. 149 (2004); United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

The frequency of these warrantless electronic device searches has raised significant privacy concerns. In the 2022 and 2023 fiscal years, CBP reported conducting as many as 45,499 device searches. According to CBP data, there has been a notable increase in searches of electronic devices belonging to Chinese nationals at U.S. borders: agents reportedly carried out 1,147 searches of Chinese nationals' electronic devices in 2019, a rise of 66% from the previous year.